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Madhya Pradesh High Court · body

2015 DIGILAW 527 (MP)

KEDAR SHARMA v. STATE OF M. P.

2015-05-01

D.K.PALIWAL

body2015
JUDGMENT : 1. This criminal revision petition has been filed under section 397 read with section 401 of Criminal Procedure Code being aggrieved with the order, passed by Special Judge, SC/ST (Prevention of Atrocities) Act, 1989, Mandsaur in special case No. 29/2014 on 18-6-2014 whereby charges under section 354-A(1), 354-D(1) and 506(2) of Indian Penal Code and under section 3(1)(xi) and 3(1)(xii) of SC/ST (Prevention of Atrocities) Act, 1989 (which shall be referred hereinafter as "Act") have been framed against the petitioner. 2. Factual matrix of the case is that the complainant made a complaint against the petitioner alleging that she belongs to scheduled caste and posted as a Sub Excise Inspector in the Office of District Excise, Mandsaur. On 7-9-2013 petitioner met her in Office premises and told that what she did by making complaint against him and addressing her "Chamarin". Petitioner also said that he would teach her lesson and threatened to defame her blaming her to be characterless. It is alleged that earlier also on 25-5-2013 petitioner has committed "Aíbrb haH$V" with her and a complaint was made by the complainant to the Senior Officers and the matter was under inquiry, however no action has been taken. It is further alleged that the complainant is feeling unsafe, therefore, prayed for taking action against the petitioner. On the basis of aforesaid complaint Crime No. 74/2013 under sections 354-A(1), 354-D(1) and 506(2) of Indian Penal Code and under section 3(1)(xi) and 3(1)(xii) of SC/ST (Prevention of Atrocities) Act, 1989 have been registered against the petitioner. After due investigation charge-sheet has been filed before the Special Judge. The learned Special Judge after having considered the material placed before him, framed the charges under section 354(1), 354-D(1) and 506(2) of Indian Penal Code and under section 3(1)(xi) and 3(1)(xii) of SC/ST (Prevention of Atrocities) Act, 1989, Being aggrieved this revision petition has been filed. 3. Learned counsel for the petitioner submits that the impugned order is contrary to law and deserves to be set aside. It is submitted that there is no prima facie material against the petitioner for framing the charges under section 354-A(1), 354-D(1) and 506(2) of Indian Penal Code and under section 3(1)(xi) and 3(1)(xii) of SC/ST. (Prevention of Atrocities) Act, 1989. Learned counsel for the petitioner submits that the impugned order is contrary to law and deserves to be set aside. It is submitted that there is no prima facie material against the petitioner for framing the charges under section 354-A(1), 354-D(1) and 506(2) of Indian Penal Code and under section 3(1)(xi) and 3(1)(xii) of SC/ST. (Prevention of Atrocities) Act, 1989. It is urged that if the allegations made in the FIR are taken at their face value and accepted in its entirety do not prima facie constitute any offence. It is submitted that charges has been framed regarding the incident on 23-5-2013 as well as 7-9-2013 which is not permissible in law, hence prayed for quashing of charges. 4. Learned Government Advocate for respondent/State on the other hand supported the impugned order of framing of charge submitting that prima facie there is sufficient material to frame the charge against the petitioner. 5. I have considered the submissions of learned counsel and perused the record. The complainant has submitted a written complaint dated 10-9-2013 in the Jan Sunwai Programme of S.P., Mandsaur, which is in her hand-writing and reads as under :- 6. The learned trial Court framed the charges which reads as under :- 7. In the complaint dated 10-9-2013 the allegations made against petitioner the about uttering the word ""~X_me, ZrM, M_maZ'' and with regard to incident dated 23-5-2013 except doing ""Aíbrb haH$V'' nothing is mentioned, however, in her case-diary statement which was recorded on 30-11-2013, complainant has stated that on 23-5-2013 Kedar Sharma called her on Mobile Phone saying that 8. In the aforesaid statement nothing has been mentioned with regard to incident dated 7-9-2013. 9. In the aforesaid statement nothing has been mentioned with regard to incident dated 7-9-2013. 9. In the statement dated 18-12-2013 complainant has stated that petitioner said that _wPo Vwåhmao {b`o Hw$N> \$sqbJ Am ahr h¡ Am¡a Eogm H$aVo hþE _oao gmW Aíbrb ~mV| H$aVo hþE emar[aH$ g§~§Y ~ZmZo H$s noeH$e H$s Ed§ Eogm Zht H$aZo na ~XZm_ H$aZo H$s Y_H$s Xr Wr& gmW hr H$hZo bJo {H$ _oao {d^mJ _| d[aîR> A{YH$m[a`m| go AÀN>o g§~§Y h¡ & gmao d[að> A{YH$mar _oao nj _| h¡ & Am¡a AJa Vy_ _oao gmW g§~§Y ~ZmAmoJr Vmo {d^mJ _| H$^r ^r {H$gr H$m_ _| VH$br\$ Zhr Am`oJr & Am¡a Vw_ ~hwV AmJo OmAmoJr & {XZm§H$ 7-9-2013 H$mo em_ Ho$ bJ^J 4 go 5 Ho$ ~rM _| {Obm Am~H$mar H$m`m©b` _§Xgm¡a Ho$ n[aga _| _wPgo Jmbr-Jbm¡M H$aVo hþ`o H$hm {H$ ~X_me, ZrM, M_maZ _¡ VyPo g~H$ {gImC§Jm, VwPo H$hr H$m Zht N>moSy>§Jm & Am¡a VyZo _oam S`m {~Jm {b`m & H$hH$a _wPo M[aÌhrZ H$hm & Bg àH$ma Om{VgyMH$ eãXm| H$m Cn`moJ H$a `m¡Z CËnr Z H$aVo hþ`o _yPo An_m{ZV {H$`m & Bg KQ>Zm Ho$ àË`j Jdmh d[að> nÌH$ma {dO` e_m© Am¡a _oao n{V h¡ & 10. Yashpal, who is husband of the complainant, in his case-diary statement has stated that on 23-5-2013 Kedar Sharma has telephoned his wife on her Mobile Phone and had talked in filthy language. When he telephoned Kedar Sharma from wife's Mobile Phone, Kedar Sharma has disconnected the Phone. With regard to the incident on 7-9-2013 Yashpal says that he went to bring his wife from District Excise Office, then, he saw Kedar Sharma was abusing his wife. Vijay Sharma, claiming himself to be a Press Reporter stated that on 7-9-2013 he has gone to Office of S.P. Excise Office, when he reached there, he saw that Kedar Sharma was saying to Seema (the complainant) that ""_mXaMmoX M_maZ, ~X_me VwZo S`m H$a {b`m, _¡Zo nhbo hr H$hm Wm {H$ _oam Bg {d^mJ _| H$moB© Hw$N> Zht {~Jm gH$Vm h¡ Am¡a A~ Voam Eogm M[aÌ hZZ² H$ê§$Jm {H$ Vw Bg {d^mJ _| {H$gr H$mo _wh§ {XImZo Ho$ H$m{~b Zht ah|Jt &'' 11. At the stage of framing of the charge, the truth, veracity and effect of the evidence, which the prosecutor proposes to adduce are not to be meticulously judged. At the stage of framing of the charge, the truth, veracity and effect of the evidence, which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of section 227 or 228 of Code of Criminal Procedure. The Court at the stage of framing of charge is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence charge can be framed. 12. In the case of Central Bureau of Investigation, Hyderabad vs. K. Narayana Rao, 2012 AIR SCW 5139, the Apex Court considered the scope of sections 227 and 228 of Criminal Procedure Code and held that for framing of charge, a roving enquiry in pros and cons of matter and weighing of evidence as is done in trial is not permissible at this stage. The charge has to be framed if Court feels that there is strong suspicion that accused has committed offence. Thus, even if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, a charge can be framed. 13. Section 354-A(1) of Indian Penal Code has been defined as under :- A man committing any of the following acts :- (i) Physical contact and advances involving unwelcome and explicit sexual overtures; or (ii) a demand or request for sexual favours; or (iii) showing pornography against the will of a woman; or (iv) making sexually coloured remarks; shall be guilty of the offence of sexual harassment xxxxxxxxx 14. Section 354-D(1) of Indian Penal Code has been defined as under :- Any man who - (i) follows a woman and contacts, or attempts to contact such woman by foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or (ii) monitors the use by a woman of the internet, e-mail or any other form of electronic communication, commits the offence of stalking; xxxxxxxxxx 15. According to the prosecution case, petitioner called the complainant from his Mobile Nos. According to the prosecution case, petitioner called the complainant from his Mobile Nos. 7475049486, 9425059311 to her Mobile No. 7415049647 demanding for sexual favour but there is no material on record demonstrating that the aforesaid number belongs to the complainant and the petitioner. No call details regarding aforesaid mobile phones have been collected. 16. It is pertinent to mention that no allegation of demand or request of sexual favour, making sexually coloured remarks or advances involving unwelcome and explicit overtures has been made in the complaint made by complainant. Thus ingredients of offence punishable under section 354-A(1) of Indian Penal Code are missing in the written complaint made by complainant. Similarly ingredients of offence punishable under section 354-D(1) of Indian Penal Code are also missing. 17. After considering the entire record I find that there is no prima facie material available on record for framing charges under section 354-A(l) and 354-D(1) of Indian Penal Code. 18. Section 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act reads as under :- 3. Punishments for offences of atrocities - - (1) Whoever, not being a member of a Scheduled Caste or Scheduled Tribe, - xxxxxxxxxx (xi) assault or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty ; xxxxxxxxxx Section 3(1)(xii) of the Act reads as under :- 3. Punishments for offences of atrocities. - (1) Whoever, not being a member of a Scheduled Caste or Scheduled Tribe, - xxxxxxxxxx (xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed. 19. In the FIR no allegation has been made regarding intentionally insulting or intimidating with an intent to humiliate the complainant who belongs to Scheduled Caste publically. Addressing the complainant by a caste, and using the word "Chamarin" does not constitute the offence punishable under section 3(1)(xi) of the Act. This court in the case of Jasrath Singh and another vs. State of M.P., 2005 (4) MPLJ 363 wherein the allegation was that the appellants have said that `hm§ M_ma n§Mm`V hmo ahr h¡ has held not to be sufficient to constitute the offence punishable under section 3(1)(xi) of the Act. 20. This court in the case of Jasrath Singh and another vs. State of M.P., 2005 (4) MPLJ 363 wherein the allegation was that the appellants have said that `hm§ M_ma n§Mm`V hmo ahr h¡ has held not to be sufficient to constitute the offence punishable under section 3(1)(xi) of the Act. 20. The word "intentionally", "insult" and "humiliation" are not defined in the Act. The "intent" means having the mind bent on an object, "intentional" means done purposely. The term "intentional" has been used in relation to act done by or with intention which means to do wrong with intent. The word "humiliation" means to lower the dignity of painfully humbling, the state of being humble and free from pride. The word "humiliate" means to cause a person to feel disgrace, humble condition or attitude of mind. 21. In view of the definition of the aforesaid words to prove the offence under section 3(1)(xi) of the Act, there must be element of intention committing insult or intimidating with intent to humiliate a member of Scheduled Caste. 22. In the matter of Anil Kumar Pandey vs. Daulat Prasad, 2005 (4) MPLJ 467 wherein applicant told the complainant ""Om ~o M_am Voam {hgm~ hmo MwH$m h¡ Omo XoIo H$a boZm'' was held not to fall under the purview of section 3(1)(xi) of the Act. 23. In the instant case, the ingredients of offence punishable under section 3(1)(xii) are also missing. Similarly the ingredients of section 506-II of Indian Penal Code are also missing. 24. In view of the aforesaid discussions, in the opinion of this Court the ingredients of offence under section 354-A(1), 354-D(1) and 506-II of Indian Penal Code and under section 3(1)(xi) and 3(1)(xii) of the Act are missing, therefore, prima facie there is no material to frame the charges against the petitioner under section 354-A(1), 354-D(1) and 506-II of Indian Penal Code. Learned trial Court has not carefully gone through the entire material and has committed illegality in framing the charges. Thus, this revision petition deserves to be allowed, consequently, it is allowed. Charges against the petitioner are hereby quashed and the petitioner is discharged from the charges under section 354-A(1), 354-D(1) and 506-II of Indian Penal Code and under section 3(1)(xi) and 3(1)(xii) of the Act. 25. Criminal revision stand disposed of.